P. v. Amparan CA5

California Court of Appeal Jul 1, 2013 No. F064011Unpublished

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Holding. The court held that probation conditions prohibiting the possession of alcohol, narcotics, and weapons are not unconstitutionally vague because they are sufficiently precise and include an implied knowledge requirement.

Issues

Whether probation conditions prohibiting the possession of alcohol, narcotics, and weapons are unconstitutionally vague for lacking an explicit knowledge element.

Disposition. affirmed

Quotations verified verbatim against the opinion

“probation conditions 19, 20, and 30, are not constitutionally vague and need not be modified.”

“it is now settled that a knowledge requirement is implied in each condition and that a probation violation may not be found absent knowing conduct”

Filed 7/1/13 P. v. Amparan CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F064011 Plaintiff and Respondent, (Super. Ct. No. VCF254599B) v.

OSCAR AMPARAN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Glade F. Roper, Judge. Cheryl Anderson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne Le Mon, Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent -ooOoo-

* Before Wiseman, Acting P.J., Detjen, J. and Peña, J.

Appellant, Oscar Amparan, pled guilty to possession of methamphetamine (count 2/Health & Saf. Code, § 11377, subd. (a)) and possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)). On appeal, Amparan contends that three of his conditions of probation are unconstitutionally vague. We affirm. FACTS1 On October 27, 2011, the trial court placed Amparan on probation for three years and ordered him to participate in recovery court. Amparan‟s terms and conditions of probation included the following conditions which required that Amparan:

“19. Not use or possess alcoholic beverages and shall not enter a place where alcohol is the primary beverage sold or served.

“20. Not use or possess narcotics or any restricted or controlled substances without a prescription. The defendant shall not use any prescribed or over- the-counter medications without the prior approval of the Judge, Probation Officer or assigned treatment provider. ¶ … ¶

“22. Not associate with any person(s) using, selling or trafficking in narcotics or dangerous drugs. ¶ … ¶

“30. Not own or possess any weapon.” At a hearing on April 26, 2012, Amparan asked the court to modify his terms of probation by eliminating the requirement that he participate in drug court and adding a knowledge element to the above-noted conditions of probation. After eliminating the drug court requirement and ordering Amparan to serve an aggregate 190 days on his two convictions, the court stated:

P. v. Amparan CA5

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